33
D.
Judicial Guarantees and Judicial Protection (Articles 8 and 25 in relation to Article
1.1 of the American Convention)
147. Article 8.1 of the American Convention recognizes every individual's right to be
heard before a competent judge or court within a reasonable period of time:
Every person has the right to a hearing, with due guarantees and within a reasonable time, by
a competent, independent, and impartial tribunal, previously established by law, in the
substantiation of any accusation of a criminal nature made against him or for the
determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
148. Article 25 of the American Convention in turn contemplates every individual's right
to simple and speedy remedy before competent judges or courts for protection against acts that
violate fundamental rights:
1.
Every person has the right to simple and prompt recourse, or any other effective
recourse, to a competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution or laws of the state concerned or
by this Convention, even though such violation may have been committed by persons
acting in the course of their official duties.
2.
The State parties undertake:
a.
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of the state;
b.
to develop the possibilities of judicial remedy; and
c.
to ensure that the competent authorities shall enforce such remedies when
granted.
149. The Inter-American Commission has stressed on previous occasions the importance
of the State's obligation to investigate and punish the perpetrators of human rights violations, and,
if necessary, to make reparations to the victim or to this immediate family, when the violation has
its origin in agents of the State. 125 In addition, as mentioned before, the State has an obligation to
investigate, derived from the more general obligation of guarantee enshrined in Article 1.1 of the
Convention, independently of the agent to whom the violation may eventually be attributed, even if
a member of the public. 126
150. According to the Inter-American Court's decisions, in order to fulfill its duty to
investigate, the State must seek "the truth effectively", must punish the actual perpetrators and the
masterminds, and the investigation "must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective." 127 This obligation is a matter for the State, since it "has
the duty to immediately and ex oficio begin an effective investigation to identify, try, and punish
125
Cf. IACHR, Report No. 36/08, Merits, Case 12.487, Rafael Ignacio Cuesta Caputi, Ecuador, July 18, 2008,
126
Cf. I/A Court H.R., Case of Velásquez Rodríguez v Honduras. Merits. Judgment of July 29, 1988. Series C No.
para.66.
4, para.177.
127
para.177.
I/A Court H.R., Case of Velásquez Rodríguez v Honduras. Merits. Judgment of July 29, 1988. Series C No. 4,